Citation Nr: 0810448
Decision Date: 03/28/08 Archive Date: 04/09/08
DOCKET NO. 03-22 037A ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Chicago,
Illinois
THE ISSUE
Entitlement to an effective date earlier than April 12, 2001
for the assignment of a 100 percent evaluation for post-
traumatic stress disorder ("PTSD").
ATTORNEY FOR THE BOARD
Patricia A. Talpins, Associate Counsel
INTRODUCTION
The veteran had active service from April 1967 to April 1970.
By rating action in March 1998, the Department of Veterans
Affairs ("VA") Regional Office ("RO") granted service
connection for PTSD and assigned a 50 percent evaluation
effective from June 30, 1997, the date of receipt of claim.
The veteran and his representative were notified of this
decision and did not appeal.
This matter initially came before the Board of Veterans
Appeals ("BVA" or "Board") on appeal from a December 2001
rating decision by the RO which, in part, assigned a 100
percent evaluation under the provisions of 38 C.F.R. § 4.29
for hospitalization effective from January 20, 2001, and an
increased evaluation of 70 percent for PTSD from May 1, 2001
based upon an increased rating request submitted by the
veteran in April 2001. A subsequent rating decision dated in
March 2003 assigned a 100 percent schedular rating for the
veteran's PTSD effective from April 12, 2001, the date of
receipt of the veteran's claim. See also August 2002 rating
decision.
In September 2005, the Board promulgated a decision which
denied an effective date earlier than April 12, 2001 for the
assignment of his 100 percent schedular rating for PTSD, and
the veteran appealed that decision to the United States Court
of Appeals for Veterans Claims ("the Court"). In February
2006, the Court granted a Joint Motion for Remand submitted
by the parties and remanded the September 2005 decision to
the Board. The Board remanded the appeal to the RO in April
2006 for additional development consistent with the
instructions set forth in the February 2006 Joint Motion for
Remand.
The veteran's appeal was returned to the Board in November
2006. Thereafter, in a February 2007 decision, the Board
denied that veteran's request for an effective date earlier
than April 12, 2001 for the assignment of his 100 percent
schedular evaluation. The veteran appealed the Board's
November 2006 decision to the Court. In December 2007, the
Court vacated and remanded the Board's February 2007 decision
in light of another Joint Motion for Remand submitted by the
parties. See December 2007 Joint Motion for Remand; December
2007 Court order. As such, the appeal has been returned to
the Board for compliance with the instructions set forth in
the December 2007 Joint Motion for Remand.
In light of the instructions set forth in the December 2007
Joint Motion for Remand, the Board REMANDS the appeal to the
RO via the Appeals Management Center ("AMC") in Washington,
DC. VA will notify the veteran if further action is required
on his part.
REMAND
A review of the record with respect to the veteran's claim of
entitlement to an effective date earlier than April 12, 2001
for the assignment of a 100 percent evaluation for his
service-connected PTSD discloses a need for further
development prior to final appellate review.
In this regard, the Board observes that the effective date
provisions for awards of increased disability compensation
include a general rule that an award based on a claim for
increase of compensation "shall be fixed in accordance with
the facts found, but shall not be earlier than the date of
receipt of application therefore." 38 U.S.C.A. § 5110(a).
The corresponding VA regulation expresses this rule as "date
of receipt of claim or date entitlement arose, whichever is
later." 38 C.F.R. § 3.400(o)(1). Under the general rule
provided by the law, an effective date for an increased
rating may be assigned later than the date of receipt of
claim - if the evidence shows that the increase in disability
actually occurred after the claim was filed-but never earlier
than the date of claim. The law provides one exception to
this general rule governing increased rating claims. If the
evidence shows that the increase in disability occurred prior
to the date of receipt of claim, the RO may assign the
earliest date as of which it is factually ascertainable that
the increase occurred as long as the claim for the increased
disability rating was received within one year of the date
that the increase occurred. 38 U.S.C.A. § 5110(b)(2); 38
C.F.R. § 3.400(o)(2).
As referenced above, the veteran was granted a temporary
total evaluation based on hospitalization for treatment of
PTSD from January 20, 2001 to May 1, 2001 under the
provisions of 38 C.F.R. § 4.29, and a 70 percent evaluation
from May 1, 2001. See December 2001 rating decision. In
August 2002, the RO assigned a 100 percent schedular
evaluation for the veteran's PTSD effective from December 21,
2001, the date of receipt of the veteran's notice of
disagreement. Thereafter, in March 2003, the RO found that
there was clear and unmistakable error in the August 2002
rating decision and assigned a 100 percent schedular
evaluation for PTSD effective from April 12, 2001, the date
of receipt of his claim for an increased rating. In
increasing the veteran's disability rating, the RO reviewed
VA medical records identified by the veteran, including a
disability determination and medical records from the Social
Security Administration, that showed the veteran was
voluntarily admitted to a Dual Diagnosis unit on January 20,
2001 for treatment of alcohol dependence and depression.
After physical detoxification from alcohol, the veteran was
transferred to the Substance Abuse Residential Treatment
Program on January 30, 2001 and was an inpatient until March
13, 2001. Thereafter, he was admitted to the Stress Disorder
Treatment Unit of another VA hospital for treatment of PTSD
from March 20, 2001 to April 24, 2001.
The veteran appealed the assignment of April 12, 2001 as the
effective date for his 100 percent schedular evaluation. See
April 2003 Notice of Disagreement; June 2003 Statement of the
Case; August 2003 VA-Form 9. In a September 2005 decision,
the Board denied the veteran's claim. However, this decision
was vacated and remanded by the Court on the basis of a Joint
Motion in which the parties argued that the Board erred in
not considering whether "there was a factually ascertainable
increase during the period from April 12, 2000 to January 19,
2001"
(i.e., the one year period prior to receipt of the veteran's
claim for an increased rating under the provisions of 38
C.F.R. § 3.400(o)(2)). See February 2006 Joint Motion for
Remand, p. 3; February 2006 Court order. In compliance with
the February 2006 Court order, the Board remanded the
veteran's claim to the RO with instructions to, among other
things, take appropriate actions to obtain VA medical records
from all VA medical facilities where the veteran was treated
for his PTSD from April 2000 to April 2001. See April 2006
BVA decision, p. 3. Upon completion of this development, the
RO continued to deny the assignment of an earlier effective
date. See October 2006 Supplemental Statement of the Case.
The appeal was then returned to the Board; and the Board
issued its February 2007 decision denying the veteran's
claim.
On appeal to the Court, the parties argued that the Board
erred in issuing its February 2007 decision because it failed
to comply with the requisite duty to assist provisions "when
it did not request medical records dating back to January of
2000" since the evidence of record showed that the veteran
received inpatient treatment for his PTSD symptoms beginning
January 21, 2001. See December 2007 Joint Motion to Remand,
pgs. 1, 2. In its December 2007 order, the Court granted the
parties' Joint Motion for Remand and ordered that the Board
comply with the instructions set forth therein. Therefore,
in compliance with the Court's December 2007 order, the Board
remands this case to the RO for the purpose of obtaining the
medical records referenced in the December 2007 Joint Motion
to Remand.
Accordingly, the case is REMANDED for the following actions:
1. The RO should ensure that all
notification and development action
required by the VCAA and implementing VA
regulations is completed, including the
notification requirements and
development procedures contained in 38
U.S.C.A. §§ 5102, 5103, 5103A and 5107.
See also Dingess/Hartman v. Nicholson,
19 Vet. App. 473 (2006); Mayfield v.
Nicholson, 444 F.3d 1328 (Fed. Cir.
2006); Vazquez-Flores v. Peake, 22 Vet.
App. 37 (2008).
2. The RO should once again take
appropriate steps to contact the veteran
and obtain the names of all VA medical
facilities where he was treated for his
PTSD from January 2000 to January 2001.
Thereafter, the RO should attempt to
obtain all records from the identified
facilities and associate them with the
claims file. Of particular interest are
all medical records for treatment at
VAMC Hines from January 20, 2000 to
January 20, 2001. If any records
identified by the veteran cannot be
obtained, he should be so informed and
it should be documented in the claims
folder.
When the development requested has been completed, the case
should again be reviewed by the RO on the basis of the
additional evidence. If the benefit sought is not granted,
the veteran should be furnished a Supplemental Statement of
the Case and be afforded a reasonable opportunity to respond
before the record is returned to the Board for further
review.
The purpose of this REMAND is to obtain additional
development; and the Board does not intimate any opinion as
to the merits of the case, either favorable or unfavorable,
at this time. The veteran is free to submit any additional
evidence and/or argument he desires to have considered in
connection with his current appeal. Kutscherousky v. West, 12
Vet. App. 369 (1999). No action is required of the veteran
unless he is notified.
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2006).
_________________________________________________
S. L. Kennedy
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal. 38 C.F.R.
§ 20.1100(b) (2007).